Institute for Justice

Oregon Engineering Speech

Running red lights can get you a ticket. But in Oregon, you can be fined just for talking about it.

Mats Järlström learned this first-hand last year when the state of Oregon fined him $500 for publicly suggesting that yellow lights should last for slightly longer to accommodate cars making right turns.

It all started when Mats’s wife received a red-light camera ticket, which sparked Mats’s interest in how exactly yellow lights are timed.

He did a little Googling and found the formula used to set traffic-light times. The length of time a traffic light stays yellow is based on a relatively straightforward mathematical formula, originally drafted in 1959. Mats realized that the formula is incomplete, because it fails to capture the behavior of drivers making right turns. After developing a modified formula and even corresponding with one of the formula’s original creators, Mats started to reach out to others in the scientific community, government officials, and the media.

Mats’s work was generally met with interest and praise, but when Mats e-mailed the Oregon State Board of Examiners for Engineering and Land Surveying, things took an abrupt illegal U-turn. The Board told Mats they had no interest in hearing about his ideas. Fair enough. But the Board didn’t stop there. They launched a full-blown investigation, alleging that he’d engaged in the unlicensed “practice of engineering.”

After a two-year-long investigation, the Board fined him $500. According to the Board, “critiquing” the length of yellow lights and talking about his ideas with “members of the public” made Mats a lawbreaker because he’s not an Oregon-licensed professional engineer.

The Board also told Mats that he couldn’t refer to himself using the word “engineer” either. Most people would probably agree that “engineer” is a sensible way to describe Mats, given his education, experience, and skills. (He has a degree in electrical engineering from Sweden, and he’s worked in a range of technical fields for decades). But in Oregon, none of that matters; the word “engineer” is off-limits to everyone who is not a state-licensed professional engineer.

But now, Mats is fighting back. No matter how technical the topic, the government cannot give state-licensed experts a monopoly on exchanging ideas. Mats isn’t claiming the right to single-handedly change traffic lights himself; he just wants to talk about them.

The government has also stopped people like Mats from truthfully calling themselves “engineers.” Just as the State of Oregon has no monopoly on engineering concepts, it has no monopoly on words. That is why Mats has teamed up with the Institute for Justice to ask the federal courts to protect the First Amendment rights of all Oregonians to speak freely about whatever they want. It’s time for Oregon to give free speech the green light.

Techdirt|December 7, 2017

Autoblog|December 7, 2017

Photos

Illegal Math?

A state board in Oregon is punishing people for talking about traffic lights and any other “engineering” topics

In April 2013, Mats Järlström’s wife drove her Volkswagen through the intersection of Allen Boulevard and Lombard Avenue in Beaverton, Oregon. She later received a ticket based on the red-light camera there. That ticket sparked her husband’s fascination with traffic-light timing.

Mats is a Swedish-born electronics engineer. He has the equivalent of an American Bachelor of Science in electrical engineering. After serving as an airplane-camera mechanic in the Swedish Air Force, he worked for Luxor Electronics, and eventually immigrated to the United States in 1992, settling in Oregon. In recent years, he’s been self-employed, testing audio products as well as repairing, upgrading and calibrating test instruments.

Since his wife’s traffic ticket, Mats has devoted his spare time to studying the math behind yellow-light timing. In his view, the leading mathematical formula for calculating the proper length of yellow lights (dating back to 1959) is incomplete, because it fails to account for how drivers decelerate before making a right-hand turn. Mats’s revised theory addresses that issue; his formula is based on the 1959 model but also factors in the time needed for turning drivers to clear the intersection.

Like most people, Mats is not a licensed professional engineer. As a private citizen, he has no power to alter traffic lights anywhere, just as he has no power to uproot stop signs, repaint pavement markings, or alter the route of highways. He has, however, expressed his ideas publicly, and has received generally positive responses. He has even corresponded with Dr. Alexei Maradudin, one of the developers of the original 1959 formula. And last summer, he presented his theories at the annual meeting of the Institute of Transportation Engineers, in Los Angeles.

Mats also shared his ideas with the Oregon State Board of Examiners for Engineering and Land Surveying. In an e-mail that the Board would later rule unlawful, Mats sent a message to the Board telling them: “I would like to have your support and help to investigate and present the laws of physics related to transportation engineering in the State of Oregon,” and he offered to present his theories to the Board “for your review and comments.”

A Board investigator responded promptly. The investigator told Mats that the Board has no authority over traffic lights, but that the agency does have authority over engineering laws, and that Mats was breaking them through his “use of the title ‘electronics engineer’ and the statement ‘I’m an engineer.’” Because Mats is not an Oregon-licensed professional engineer, the investigator warned him to “stop any further references until you become registered with the Board.”

Undaunted, Mats continued to speak out publicly about traffic lights, writing to academics, policymakers, and others about his ideas. Often, he included the Board in his correspondence, thinking they might be interested in the issue. At no point did anyone at the Board respond.

Instead, in February 2015, the Board voted to open an investigation into Mats. The agency notified Mats of this development nearly two months later, writing that “the allegations are that you . . . continued to use the title ‘engineer’ in your communications with Board staff and, of more concern, are the documents you provided that indicate you may have engaged in unlicensed engineering work in Oregon.”

The Board investigates Mats for two years, fines him $500

Like every other state in the nation, Oregon regulates professional engineers. These are the specialists who design the electrical plan for a hospital, the plumbing system for a courthouse, or the structure for a bridge. As Mats learned first-hand, however, Oregon’s Professional Engineer Registration Act also restricts and punishes ordinary people for their most basic acts of protest, civic engagement and political speech.

There is a world of difference between someone who makes sure skyscrapers are built to stay standing and someone who voices an opinion about a traffic light, talks about engineering issues with friends, or points out that the Leaning Tower of Pisa has a four-degree tilt. But according to Oregon’s law, all these activities are all one and the same—and it’s illegal to do any of them in Oregon without first becoming a state-licensed professional engineer.

That’s a tall order, because to get your professional-engineer license you’d need to pass a six-hour “Fundamentals of Engineering” examination (fee: $225); pass an eight-hour, branch-specific “Principles and Practice of Engineering” examination ($350); submit an application to the Board, along with $360 and five references (three of whom must be registered professional engineers); and demonstrate “a Board approved combination of education and experience,” which generally entails at least four years of work under a registered professional engineer. All to talk about traffic lights.

After voting to investigate Mats, the Board let the case linger for another year and a half. Then, in the summer of 2016, the agency voted to fine him. Two and a half months after that, Mats received a penalty notice, which, for the first time, explained what he’d done wrong.[1]

According to the Board, Mats illegally practiced engineering without a license every time he “critique[d]” the existing traffic-light system and shared his ideas with “members of the public.” Even his e-mail to the creator of the original formula was ruled illegal. So was his correspondence with local media. The practice of engineering is defined to cover “any . . . creative work requiring engineering education, training and experience.”[2] And the law is just as sweeping as it sounds. Even the Oregon Attorney General’s Office has admitted that it’s “a broad definition which may have a particular meaning to those persons trained and knowledgeable in engineering but may be unclear to anyone else.”[3]

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With Mats in their sights, the Board harnessed this law to full effect. Mats’s original e-mail to the agency was the “practice of engineering,” the Board ruled. The Board also told Mats that even the word “engineer” was off-limits. Not only can people like Mats not talk about technical topics, the Board said, they can’t even describe themselves using the word “engineer”—even if they have an engineering degree.

Ordinarily, laws restricting what words people can use to describe themselves target fraud and false commercial advertising, but Oregon’s law reaches much further. According to the Board, Mats broke the law when he told a local television station: “I’m a Swedish engineer.” The Board even said Mats broke the law simply by disagreeing with them that the law applied to him.

All told, the Board listed nine separate violations and fined Mats $500. After Mats paid up, the Board finally closed its investigation. Case No. 2929—In the Matter of MATS JARLSTROM—had remained open for 1 year, 10 months, and 29 days.

A Board out of control

Mats’s experience is all too common. In recent years, the Board has used its licensing laws against a startling number of people whose only offense was speaking in public.

In 2010, for example, an activist told a city council that he thought a proposed power plant would be too loud for nearby homes. To most Americans, that would look like a classic exercise of First Amendment rights.

The Board saw things differently.

After a professional engineer working for the power plant submitted a complaint, the Board launched a full-blown investigation against the activist. The case dragged on for nearly four years and culminated in a $1,000 fine. Because his speech “was critical of the noise study” submitted by the power plant, the activist was ultimately held to have performed the illegal, unlicensed practice of engineering. As for the First Amendment? According to the Board, the activist’s “reports, commentary, and testimony are clearly not protected speech.”[4]

In another instance, Board members even said it would be illegal for a passerby to publicly voice “calculations and conclusions” about whether a construction site is safe. “[T]hat person was not examined or tested by the Board, so their qualifications are unknown,” the Board reasoned. Translation: Unless you have a government permission slip, keep your ideas to yourself.

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The Board has been equally aggressive in policing who can use the word “engineer.” Outside very limited contexts (like fraud or false advertising), the government doesn’t get to decide who is using words truthfully or falsely. But the Board hasn’t let that stop them. Here are just a few of the agency’s recent First Amendment violations:

The Board fines a retiree for complaining about his flooded basement. A retiree wrote the Board a letter, complaining that city engineers in his home town had caused water damage to his home. The Board said they couldn’t do anything about the water damage. But they did fine the retiree for calling himself a “PE” (the abbreviation for a Professional Engineer) in his letter. He had been a licensed professional engineer in Maryland for decades, but he wasn’t licensed in Oregon. As if the flooded basement weren’t enough, the Board fined him $350 and subjected him to years of government enforcement.[5]

The Board fines a different retiree for helping his daughter. Another retiree testified on his daughter’s behalf in a property dispute, and a complaint was filed against him with the Board. The Board determined that the retiree had said “that he has been a mechanical engineer for over 40 years in court testimony, without stating that his registration was in retirement status . . . .” For that violation, the Board fined the retiree $500.[6]

The Board investigates a businesswoman based on a magazine article celebrating her achievements. The “Oregon Woman 2015” edition of Portland Monthly included an article titled, “The incredible story of the engineer behind Portland’s newest bridge,” about a female immigrant and entrepreneur. Most readers probably found the article inspiring. The Board took a different view. It decided to open a law-enforcement case against the woman “because of the reference to [her] as an engineer in the on-line version of the story when in fact [she] is not a registered professional engineer.” Agency minutes suggest that a Board investigator even interrogated the journalist who wrote the article, before the Board finally dropped the case.[7]

The Board investigates a local candidate for how he’s described in a voter guide. In 2014, the Board received a complaint against a candidate for Portland City Commissioner. A voter pamphlet described the candidate’s occupational background as “environmental engineer.” The candidate holds a B.S. in Environmental and Civil Engineering from Cornell, an M.S. from the MIT School of Civil Engineering, and membership in the American Society of Civil Engineers. He is not, however, an Oregon-licensed professional engineer, so the Board sprang into action. Nearly a year after receiving the complaint, the Board voted to warn the candidate against using the word “engineer” in “incorrect” ways.[8]

The Board investigates a gubernatorial candidate for a political ad. Last June, the Board voted to open an investigation into a candidate for the Republican gubernatorial primary based on a complaint that he misused the word “engineer” in one of his political ads. In the ad, the candidate said: “I’ll take a different approach. I’m an engineer and a problem solver.” The candidate earned a B.S. in Mechanical Engineering from Purdue University, worked as an engineer at Ford and Boeing, and holds a string of engineering-related awards. Again, though, he is not an Oregon-registered professional engineer, so the Board launched a government investigation against him. That investigation is now in its tenth month, with no signs of stopping.[9]

The legal issue: The First Amendment protects everyone’s right to debate technical topics

Now, Mats is fighting back, with a civil-rights challenge in federal court. He is asking the courts to hold that Oregon’s engineering laws violate the First Amendment in two ways.

First, however complex a topic may be, the government can’t give to state-licensed experts a monopoly on exchanging ideas. Yet Oregon law does just that. Mats, for example, cares about the fairness of traffic-light timing, a topic that has fueled nationwide debate. But unless he spends years qualifying as a state-licensed professional engineer, “critiquing” the math behind traffic lights will expose him to civil and even criminal penalties.[10]

That’s unconstitutional. The state can require someone to get a license before they design a bridge, or a skyscraper, or a traffic circle. But Oregon’s engineering board has warped that unremarkable power beyond recognition by taking aim at ordinary people, like Mats, who care about their communities and want to speak freely about issues that matter to them. Shutting down perspectives on technical topics doesn’t enhance public safety, which is the whole reason for regulating professional engineers in the first place. If anything, the opposite is true; to give just one example, a design flaw in Citigroup Center—one of New York’s tallest skyscrapers—was spotted not by the building’s renowned structural engineer,[11] but by an undergraduate writing her senior thesis. The lesson is obvious: The government’s interests in regulating engineering is not served by outlawing debate about engineering topics.

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Second, Oregon’s regulation of the word “engineer” is unconstitutional as well. To most English-speakers, the noun “engineer” might signify any number of jobs, skills, credentials, degrees, or accomplishments, from someone with an engineering degree to someone who operates a locomotive.

For everyday Oregonians, however, it is illegal to describe yourself as an “engineer” unless you’re a state-licensed professional engineer. This ban on ordinary human discourse cannot be squared with the First Amendment. And that is especially true here, where the state has taken speech that is not in fact false, decreed it false, and then punished speakers who unwittingly use the word “engineer” in a way that differs from the government’s favored meaning. The government does not have the power to rewrite the dictionary.[12]

CASE TEAM

IJ Attorneys Wesley Hottot and Sam Gedge represent Mats Järlström. They are joined by local counsel William J. Ohle, Jill S. Gelineau and Kelly M. Walsh of the law firm Schwabe, Williamson & Wyatt PC.

The Institute for Justice

The Institute for Justice is the national law firm for liberty, and the nation’s leading legal advocate for First Amendment rights and economic liberty. The Institute has challenged efforts to use occupational-licensing laws to silence speech by a nationwide syndicated columnist in Kentucky[13]; a retired Texas veterinarian[14]; a North Carolina blogger[15]; For Sale By Owner websites in California[16] and New Hampshire[17]; interior designers in Connecticut,[18] Florida,[19] New Mexico[20] and Texas[21]; and tour guides in Washington, D.C.,[22] New Orleans,[23] Savannah,[24] and Charleston.[25] The Institute has also challenged laws restricting truthful commercial advertising in Florida[26] and Oregon.[27]

[12]Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228, 1238 (11th Cir. 2017) (“It is undoubtedly true that a state can propose a definition for a given term. However, it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading”).